Recent statistics revealed that more than 4,000 people a night have been sleeping rough on England’s streets, a 16% increase on last year.
The figures are fuelled by cash-strapped local authorities whose modus operandi is to find different ways in which to deny their duty of care wherever possible.
A homeless person typically falls into one of three categories:
- A person who has no accommodation available to them, i.e. “street homeless”
- Living with friends or family temporarily, i.e. sleeping on a sofa “sofa surfing”
- Living in unreasonable or dangerous accommodation, i.e. where there is an immediate threat to health and safety
A local authority’s homelessness duty is essentially triggered where the homeless applicant is facing homelessness within 28 days, yet local authorities interpret the rules in different ways and typically only act when the worst has happened and a person has nowhere to go and is imminently street homeless.
Siddiq Fazaluddin is a housing lawyer at London law firm Hodge Jones & Allen (HJA). His firm receives over 1,000 homelessness enquiries a year, many of them in London, he explains: “A person might be on an assured shorthold tenancy and have been given two months’ notice to vacate but, a council will only spring into action after the court process has been concluded and an order for possession has been made. In many cases, they will only act when an individual has a date for eviction or even after the tenant has actually been evicted, having turned up at the council with all their possessions.”
Sleeping on someone’s sofa
It’s common for family and friends to help someone out facing homelessness but this act of kindness means councils will rarely prioritise someone living like this, even though they are clearly without a home. “Essentially you often have to be street homeless before a council will seriously consider you, council’s do not have the resources to deal with those facing homelessness, they tend to step in at the last possible stage and, in many cases, when the worst has actually happened,” explains Siddiq.
Living in unreasonable accommodation
When accommodation is not reasonable to occupy, for example, it may be damaged by fire, or where it is known to be dangerous, such as where there have been instances of domestic violence, local authorities will still deprioritise such cases because the individual is deemed to have a roof over their head, despite the unsuitability of the accommodation.
Siddiq explains: “A certain amount of gate-keeping takes places by councils. Clients often cite examples where non-British nationals are informally told “go back to your country”, so that the council doesn’t have to start a housing application. Unfortunately, these interactions are not formally documented. Candidates are also told to go away and bid on the council’s website for property via their allocation scheme or to approach landlords themselves and apply for housing benefit. This is not the correct procedure where an individual is vulnerable and facing imminent homelessness. By telling applicants this, councils are failing to establish at the outset whether or not they have a duty to accommodate the individual.”
Where a council allows an application, all five of the following criteria must be satisfied:
- Eligible for assistance
- In priority need
- Have a local connection
- Haven’t made themselves intentionally homeless
If a person meets the first three criteria, then a local authority needs to provide temporary accommodation pending their decision. Yet, for those sleeping on a sofa or in dangerous accommodation, as detailed above, councils still routinely refuse to provide them with temporary accommodation pending the decision. Further, if the local authority makes a negative decision at the initial stage, they no longer have an obligation but a discretion to provide temporary accommodation, pending any review of the negative decision.
This is often the stage that a client might come to HJA to make emergency representations for temporary accommodation. The firm will then send a letter requesting temporary accommodation but councils often only respond when a law firm threatens a judicial review. Even then, the response is often negative.
Prior to any judicial review application, there will be a prolonged period of correspondence going back and forth between the two parties and the council’s response is almost always negative. Succeeding on a judicial review application is extremely difficult; the application has to show the council’s decision is “perverse” or “irrational”, which is a very high threshold. More often than not, a judicial review application will fail if the council has shown some regard to the each of the concerns raised, even where they have not been thoroughly considered in context.
Making a homeless application
Siddiq explains that applicants can rarely win: “The only way an applicant can usually succeed is if the council fails to refer to an issue mentioned in the review representations and we can effectively jump on that. However, that is rare and most councils have adopted policies to prepare very long decision letters which simply repeat or paraphrase the review representations. We always assume a response will be negative, regardless of the circumstances. Because of the pressure councils are under, they will always find a reason not to house. However, applicants shouldn’t lose hope, you can win against councils but it is nearly always a battle.”
An applicant can request a review, although there is a 21-day time limit and this is where it gets complicated; applicants typically receive a lengthy, legalistic letter and will often miss that they have to act within a tight time limit if they want to challenge the decision. This is because the right to review and the time limit is usually in the last paragraph of the letter.
Any review can be refused using just any one of the five grounds listed above and this is an area where councils repeatedly take advantage of the legal framework. In order to pursue a review, HJA needs to obtain the housing file of the individual from the council, who under the Data Protection Act have 40 days to release it, yet it is usual that responses can take up to four months or in some cases, be completely ignored. The housing file often reveals relevant information and evidence in the applicant’s favour which the local authority failed to investigate.
Following this, further representations will be made and councils have 56 days to respond but more often than not they stretch this by saying “we’re making further investigations”, when in fact they are doing nothing. It is a stalling technique. They often don’t bother to reply until we prompt them for the decision.
Eventually a council will write to say what the decision they are ‘minded to’ make and you can put more representations in (if done so within seven days) and then a final decision comes in 7-14 days, thereafter, which is almost always negative.
An individual does have a right of appeal in the county court within 21 days of this decision but this can only be made on a point of law. It is also at this point that any temporary accommodation will come to an end and if the person has failed to succeed on review, which they usually do, they become homeless again.
“At HJA, we’re increasingly challenging decisions using innovative points of law on appeal. It’s often the best chance of success against a council,” says Siddiq.
However, on the occasions someone is successful, county court decisions do not set any legal precedents and so will not change housing policy.
If the county court decision is negative, the only route left is an appeal to the Court of Appeal but this is a real challenge. A Court of Appeal decision will usually only uphold that a council’s decision was wrong, it does not rule that the council has to house you. For that to happen, an applicant has to start the process all over again which could take another 6-9 months, when the applicant is left in unsuitable temporary accommodation.
Potentially, this process could be repeated a staggering FIVE times as a council could legitimately use each of the five criteria above as reasons not to house.
Siddiq says: “The truth is that the average homeless person will have lived with their life on hold for years; they are often vulnerable exacerbated by the immense stress and uncertainty of being homeless. Yet local authorities frequently seek to deny that applicants are vulnerable and therefore in “priority need” despite clear and severe mental and physical health issues supported by extensive medical evidence, and they seem prepared to fight these decisions tooth and nail.
“We’re seeing so much more of this than we did five years’ ago. In fact, HJA recently had a case vigorously fought by Westminster Council over a two-year period, where the individual who suffers from mental health issues, was eventually forced to live in his car.
“This has only been resolved after a successful court appeal and now the council has been forced to house this individual.
“Unfortunately, the approach of councils is resulting in ever greater numbers of homeless individuals. The situation will only get worse as the effects of last year’s further benefit cap takes hold and pushes even more people out of accommodation and onto the streets.
“However, by bringing such legal challenges, despite the limitations set out above, local authorities know that their policies for dealing with homeless applicants are under scrutiny and need to be kept within the legal framework, which ensures homeless applicants have some recourse.”